As government restrictions continue, the civil justice system is adjusting to social distancing. The favoured approach appears to be for hearings to take place without delay, remotely, wherever possible, with the notable exception of winding up petitions which are being adjourned. This article discusses the latest guidance from HMCTS and some strategic considerations.
In response to the Covid-19 pandemic, the courts have directed that, wherever possible, all hearings must be conducted remotely. This applies to all divisions including the Business and Property Courts, Administrative Court (including the Planning Court), the Family Court, Employment Tribunals, Court of Appeal and County Courts.
This will include hearings already listed and the listing of any urgent hearings (e.g. without notice injunctions). Indeed, last week the Commercial Court directed that a full trial should proceed remotely, refusing an adjournment application by one party. A notable exception to this are hearings of winding up petitions. Last week the Insolvency and Companies Court adjourned over 300 petition hearings. That may change when remote arrangements are put into place. However, the government is reportedly considering a number of measures to restrict the ability of creditors to pursue debtors because of Covid-19 financial pressures, and these adjournments are consistent with that approach.
Guidance on remote hearings
On 20 March 2020, the "Protocol Regarding Remote Hearings" was published to provide some basic guidance for the conduct of remote hearings. The Protocol acknowledges that its guidance is to be used flexibly, in recognition of the pace of change in response to the pandemic and the various practical and technological challenges that will be presented. Other guidance has also been given by the Lord Chief Justice and from judgments of the courts.
Key points to note are:
- The Courts will be generally unwilling to adjourn hearings and will not do so simply because one party considers it unhelpful to their prospects of success. Access to justice should continue wherever possible. A backlog of cases resulting from adjournments should be avoided.
- Adjournments may be granted where the parties all consent (although seeking adjournment at a very late stage is unlikely to be well received) or if there is a specific Covid-19 related reason – e.g. Counsel or a central witness falling ill. Where a Covid-19 reason is relied on to seek an adjournment evidence in support is likely to be needed.
- Parties are expected to adopt a cooperative approach at an early stage regarding the arrangements to be made for remote hearings and should liaise with the court office and clerks accordingly.
- The final decision as to how the remote hearing will be conducted will rest with the judge who may organise a case management conference in order to deal with any practical matters in advance of the hearing.
- Skype for Business appears to be the preferred platform for remote hearings. Zoom is another video conference option. Hearings may also be conducted remotely by telephone conference (e.g. BT MeetMe).
- Parties are not allowed to record hearings, however, a recording should be carried out by the court in order to allow transcripts to be made. Transcribers can also join the remote hearing.
- Claimants will need to provide electronic bundles to the court and the other parties. The Administrative Court has issued specific guidance on bundles which must not exceed 20MB. Only essential / key documents should be included.
- Where possible electronic bundles should be shared with the court via data rooms. Alternatively USB sticks may be provided.
It is evident that remote hearings will be standard practice for at least several weeks, and likely longer. Thought should be given now if you have (or anticipate you may have) any hearings in the near future to identify suitable arrangements and liaising with the other parties to ensure the best prospects of the hearing running smoothly.
There are also strategic considerations. Directions hearings and interim applications may well be suited to being held remotely, as happens regularly in international arbitration. However, the loss of the impact of live evidence from witnesses and experts in full trials is potentially much more problematic. Parties with trials coming up over the next 6 – 12 months will need to think carefully about how to deal with these issues.